CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 8. OPTOMETRISTS.

§30-8-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice optometry in this state without a license or permit issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are an optometrist unless the person has been duly licensed or permitted under the provisions of this article.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of optometry, except through a licensee or permittee.

(c) A licensee may not practice optometry as an employee of any commercial or mercantile establishment.

(d) A licensee may not practice optometry on premises not separate from premises whereon eyeglasses, lenses, eyeglass frames or any other merchandise or products are sold by any other person. For the purposes of this section, any room or suite of rooms in which optometry is practiced shall be considered separate premises if it has a separate and direct entrance from a street or public hallway or corridor within a building, which corridor is partitioned off by partitions from floor to ceiling.

(e) A person who is not licensed under this article as an optometrist may not characterize himself or herself as an "optometrist" or "doctor of optometry" nor may a person use the designation "OD".

§30-8-2. Applicable law.

The practice of optometry and the Board of Optometry are subject to the provisions of article one of this chapter, the provisions of this article and the board's rules.

§30-8-2a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-2b.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-3. Definitions.

As used in this article:

(a) "Appendages" means the eyelids, the eyebrows, the conjunctiva and the lacrimal apparatus.

(b) "Applicant" means any person making application for a license, certificate or temporary permit under the provisions of this article.

(g) "Examination, diagnosis and treatment" means a method compatible with accredited optometric education and professional competence pursuant to this article.

(h) "License" means a license to practice optometry.

(i) "Licensee" means an optometrist licensed under the provisions of this article.

(j) "Ophthalmologist" means a physician specializing in ophthalmology licenced in West Virginia to practice medicine and surgery under article thereof this chapter or osteopathy under article fourteen of this chapter.

(k) "Permittee" means a person holding a temporary permit.

(l) "Practice of optometry" means the examining, diagnosing and treating of any visual defect or abnormal condition of the human eye or its appendages within the scope established in this article or associated rules.

(m) "Temporary permit" or "permit" means a permit issued to a person who has graduated from an approved school, has taken the examination prescribed by the board, and is awaiting the results of the examination.

§30-8-3a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-3b.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-4. Board of Optometry.

(a) The West Virginia Board of Optometry is continued. The members of the board in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) The board shall consist of the following members appointed by the Governor, by and with the advice and consent of the Senate:

(1) Five licensed optometrists; and

(2) Two citizen members, who are not licensed under the provisions of this article and who do not perform any services related to the practice of the profession regulated under the provisions of this article.

(c) Each licensed member of the board, at the time of his or her appointment, must have held a professional license in this state for a period of not less than three years immediately preceding the appointment.

(d) Each member of the board must be a resident of this state during the appointment term.

(e) The term shall be three years. A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.

(f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.

(g) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(h) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.

(i) The board shall elect annually a president and a secretary-treasurer from its members who serve at the will of the board.

(j) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.

(k) A majority of the members of the board constitutes a quorum.

(l) The board shall hold at least two meetings a year. Other meetings may be held at the call of the president or upon the written request of two members at the time and place as designated in the call or request.

(m) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30-8-5. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.

(4) Determine the qualifications of any applicant for licenses, certificates and permits;

(5) Prepare, conduct, administer and grade examinations for licenses;

(6) Determine the passing grade for the examinations;

(7) Maintain records of the examinations by the board or a third party administer, including the number of persons taking the examinations and the pass and fail rate;

(8) Hire, discharge, establish the job requirements and fix the compensation of the executive secretary;

(9) Maintain an office and hire, discharge, establish the job requirements and fix the compensation of employees, investigators and contracted employees necessary to enforce the provisions of this article;

(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(11) Conduct disciplinary hearings of persons regulated by the board;

(12) Determine disciplinary action and issue orders;

(13) Institute appropriate legal action for the enforcement of the provisions of this article;

(14) Maintain an accurate registry of names and addresses of all licensees regulated by the board;

(15) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

(20) Take all other actions necessary and proper to effectuate the purposes of this article.

(c) The board may:

(1) Contract with third parties to administer the examinations required under the provisions of this article;

(2) Sue and be sued in its official name as an agency of this state; and

(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30-8-5a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-6. Rulemaking.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Standards and requirements for licenses, certificates and permits;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements;

(5) The passing grade on the examinations;

(6) Standards for approval of courses and curriculum;

(7) Procedures for the issuance and renewal of licenses, certificates and permits;

(8) A fee schedule;

(9) A prescription drug formulary classifying those categories of oral drugs rational to the diagnosis and treatment of visual defects or abnormal conditions of the human eye and its appendages, which may be prescribed by licensees from Schedules III, IV and V of the Uniform Controlled Substances Act. The drug formulary may also include oral antibiotics, oral nonsteroidal anti-inflammatory drugs and oral carbonic anhydrase inhibitors;

(10) Requirements for prescribing and dispensing contact lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug Administration as a drug;

(11) Continuing education requirements for licensees;

(12) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, certificate holders and permittees;

(13) Requirements for inactive or revoked licenses, certificates or permits;

(14) Requirements for an expanded scope of practice for those procedures that are taught at fifty percent of all accredited optometry schools; and

(15) Any other rules necessary to effectuate the provisions of this article.

(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.

§30-8-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "West Virginia Board of Optometry Fund", which is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.

§30-8-8. License to practice optometry.

(a) To be eligible for a license to engage in the practice of optometry, the applicant must:

(1) Be at least twenty-one years of age;

(2) Be of good moral character;

(3) Graduate from a school approved by the Accreditation Council on Optometric Education or successor organization;

(4) Pass an examination prescribed by the board;

(5) Complete an interview with the board;

(6) Not be addicted to the use of alcohol, drugs or other controlled substances;

(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for license, which conviction has not been reversed; and

(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of optometry, which conviction has not been reversed.

(b) A registration to practice issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a registration issued prior to July 1, 2010, must renew pursuant to the provisions of this article.

§30-8-9. Scope of practice.

(a) A licensee may:

(1) Examine, diagnose and treat diseases and conditions of the human eye and its appendage within the scope established in this article or associated rules;

(2) Administer or prescribe any drug for topical application to the anterior segment of the human eye for use in the examination, diagnosis or treatment of diseases and conditions of the human eye and its appendages: Provided, That the licensee has first obtained a certificate;

(3)(A) Administer or prescribe any drug from the drug formulary, as established by the board pursuant to section six of this article, for use in the examination, diagnosis or treatment of diseases and conditions of the human eye and its appendages: Provided, That the licensee has first obtained a certificate;

(B) New drugs and new drug indications may be added to the drug formulary by approval of the board;

(D) Remove corneal foreign body not through to the second layer of the cornea using topical anesthesia;

(E) Epilation of lashes by forceps;

(F) Closure of punctum by plug; and

(G) Dilation of the lacrimal puncta with or without irrigation;

(8) Furnish or provide any prosthetic device to correct or relieve any defects or abnormal conditions of the human eye and its appendages;

(9) Order laboratory tests rational to the examination, diagnosis, and treatment of a disease or condition of the human eye and its appendages;

(10) Use a diagnostic laser; and

(11) A licensee is also permitted to perform those procedures authorized by the board prior to January 1, 2010.

(b) A licensee may not:

(1) Perform surgery except as provided in this article or by legislative rule;

(2) Use a therapeutic laser;

(3) Use Schedule II controlled substances. However, an oral pharmaceutical certified licensee may prescribe hydrocodone and hydrocodone containing drugs for a duration of no more than three days;

(4) Treat systemic disease; or

(5) Present to the public that he or she is a specialist in surgery of the eye.

§30-8-10. Exceptions from licensure.

The following persons are exempt from licensure under this article:

(1) Persons licensed to practice medicine and surgery under article three of this chapter or osteopathy under article fourteen of this chapter; and

(2) Persons and business entities who sell or manufacture ocular devices in a permanently established place of business, who neither practice nor attempt to practice optometry.

§30-8-11. Issuance of license; renewal of license; renewal fee.

(a) A licensee shall annually or biennially on or before July 1, renew his or her license by completing a form prescribed by the board, paying the renewal fee and submitting any other information required by the board.

(b) The board shall charge a fee for renewal of a license, and a late fee for any renewal not paid by the due date.

(c) The board shall require as a condition of renewal of a license that each licensee complete continuing education.

(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.

§30-8-12. Temporary permits.

(a) Upon proper application and the payment of a fee, the board may issue, without examination, a temporary permit to engage in the practice of optometry in this state.

(b) If the permittee receives a passing score on the examination, a temporary permit expires thirty days after the permittee receives the results of the examination.

(c) If the permittee receives a failing score on the examination, the temporary permit expires immediately.

(d) An applicant under this subsection may only be issued one temporary permit. Upon the expiration of a temporary permit, a person may not practice as an optometrist until he or she is fully licensed under the provisions of this article. In no event may a permittee practice on a temporary permit beyond a period of ninety consecutive days.

(e) A temporary permittee under this section shall work under the supervision of a licensee, with the scope of such supervision to be defined by the board by legislative rule.

§30-8-13. License from another jurisdiction; license to practice in this state.

(a) The board may issue a license to practice to an applicant of good moral character who holds a valid license or other authorization to practice optometry from another jurisdiction, if the applicant demonstrates that he or she:

(1) Holds a license or other authorization to practice optometry in another state which requirements are substantially equivalent to those required in this state;

(2) Does not have charges pending against his or her license or other authorization to practice, and has never had a license or other authorization to practice revoked;

(3) Has not previously failed an examination for professional licensure in this state;

(4) Has paid the applicable fee;

(5) Has passed the examination prescribed by the board; and

(6) Has fulfilled any other requirement specified by the board.

(b) In its discretion, the board may interview and examine an applicant for licensing under this section. The board may enter into agreements for reciprocal licensing with other jurisdictions having substantially similar requirements for licensure.

§30-8-14. Prescriptive authority.

(a) A licensee may prescribe: (1) Topical pharmaceutical agents; (2) oral pharmaceutical agents that are included in the drug formulary established by the board pursuant to section six of this article or new drugs or new drug indications added by a decision of the board; and (3) contact lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug Administration as a drug.

(b) An applicant must:

(1) Submit a completed application;

(2) Pay the appropriate fee;

(3) Show proof of current liability insurance coverage;

(4) Complete the board required training;

(5) Pass an examination; and

(6) Complete any other criteria the board may establish by rule.

§30-8-15. Administration of injectable pharmaceutical agents.

(a) A licensee may not administer pharmaceutical agents by injection, other than epinephrine to treat emergency cases of anaphylaxis or anaphylactic shock, unless the provisions of this section, along with any legislative rule promulgated pursuant to this section, have been met.

(b) Additional pharmaceutical agents by injection may be included in the rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code. These rules shall provide, at a minimum, for the following:

(1) Establishment of a course, or provide a list of approved courses, in administration of pharmaceutical agents by injection;

(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate observation for an adverse reaction of an individual following the administration of a pharmaceutical agent by injection;

(3) A requirement that a licensee shall have completed a board approved injectable administration course and completed an American Red Cross or American Heart Association basic life-support training, and maintain certification in the same;

(4) Continuing education requirements for this area of practice;

(5) Reporting requirements for licensees administering pharmaceutical agents by injection to report to the primary care physician or other licensed health care provider as identified by the person receiving the pharmaceutical agent by injection;

(6) Reporting requirements for licensees administering pharmaceutical agents by injection to report to the appropriate entities;

(7) That a licensee may not delegate the authority to administer pharmaceutical agents by injection to any other person; and

(8) Any other provisions necessary to implement the provisions of this section.

(c) In no event may a licensee be granted authority under this section to administer a pharmaceutical agent by injection directly into the globe of the eye.

(a) There is established a special volunteer license for optometrists who are retired or are retiring from the active practice of optometry and wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge.

(b) The special volunteer license shall be issued by the board to optometrists licensed or otherwise eligible for licensure under this article without the payment of an application fee, license fee or renewal fee, and shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements.

(c) The board shall develop application forms for the special volunteer license provided in this section which shall contain the optometrist’s acknowledgment that:

(1) The optometrist’s practice under the special volunteer license will be exclusively devoted to providing optometrical care to needy and indigent persons in West Virginia;

(2) The optometrist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement, for any optometrical services rendered under the special volunteer license;

(3) The optometrist will supply any supporting documentation that the board may reasonably require; and

(4) The optometrist agrees to continue to participate in continuing education as required by the board for a special volunteer license.

(d) Any person engaged in the active practice of optometry in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the office of the optometrist or the clinical setting.

(e) Any optometrist who renders any optometrical service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge, under a special volunteer license authorized under this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (d) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the optometrical service at the clinic unless the act or omission was the result of the optometrist’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, before the rendering of any services by the optometrist at the clinic, there must be a written agreement between the optometrist and the clinic stating that the optometrist will provide voluntary uncompensated optometrical services under the control of the clinic to patients of the clinic before the rendering of any services by the optometrist at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than $1 million per occurrence.

(f) Notwithstanding the provisions of subsection (d) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of an optometrist rendering voluntary optometrical services at or for the clinic under a special volunteer license under this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (d) of this section.

(g) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure in this article except the fee requirements.

(h) Nothing in this section may be construed as requiring the board to issue a special volunteer license to any optometrist whose license is or has been subject to any disciplinary action or to any optometrist who has surrendered a license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a license.

(i) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any optometrist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by an optometrist who holds a special volunteer license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (d) of this section.

§30-8-17. Optometric business entities.

(a) Only licensees may own a business entity that practices optometry.

(b) A licensee may be employed by the business entity.

(c) A business entity shall cease to engage in the practice of optometry when it is not wholly owned by licensees: Provided, That the personal representative of a deceased shareholder shall have a period, not to exceed eighteen months from the date of such shareholder's death, to dispose of such shares.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, certificate holder or permittee.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, certificate or permit or the imposition of sanctions against the licensee, certificate holder or permittee. Any hearing shall be held in accordance with the provisions of this article, and the provisions of articles five and six, chapter twenty-nine-a of this code.

(e) Any member of the board or the executive secretary of the board may issue subpoenas and subpoenas duces tecum on behalf of the board to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive secretary may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license, certificate or permit of, impose probationary conditions upon or take disciplinary action against, any licensee, certificate holder or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a license, certificate or permit by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk;

(4) Intentional violation of a lawful order;

(5) Having had an authorization to practice optometry revoked, suspended, other disciplinary action taken, by the proper authorities of another jurisdiction;

(6) Having had an application to practice optometry denied by the proper authorities of another jurisdiction;

(7) Exceeded the scope of practice of optometry;

(8) Aiding or abetting unlicensed practice;

(9) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public; or

(10) False and deceptive advertising; this includes, but is not limited to, the following:

(A) Advertising "free examination of eyes," or words of similar import and meaning; or

(B) Advertising frames or mountings for glasses, contact lenses, or other optical devices which does not accurately describe the same in all its component parts.

(h) For the purposes of subsection (g) of this section disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee or certificate holders to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30-8-19. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive secretary of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee, certificate holder or permittee has violated the provisions of this article or the board's legislative rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-8-20. Judicial review.

Any licensee, certificate holder or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-8-21. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, certificate holder or permittee has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

(b) A person violating section one of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or confined in jail not more than six months, or both fined and confined.

§30-8-22. Single act evidence of practice.

In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

Note: WV Code updated with legislation passed through the 2017 Regular Session
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